Sexual Harassment Claims

If a supervisor demands sexual favors of you in order for you to keep your job or get a promotion, this would be considered "quid pro quo" sexual harassment. In such a situation, if the supervisor harassing you terminated you, denied your promotion, or took any other action against you, this is known as a tangible employment action, which makes your employer automatically liable.

What does "Hostile Work Environment" sexual harassment look like?

If you are repeatedly subjected on the job to threats, insults, or ridicule based on gender, even if the conduct is not sexual in nature, this can be considered "hostile work environment" sexual harassment. In such a situation, where no "tangible employment action" was taken, the employer can defend itself by asserting that it exercised reasonable care to prevent and correct promptly the sexually harassing behavior.

I think I am being sexually harassed at work, how do I prove it?

To demonstrate "quid pro quo" sexual harassment, you must show that your employer has altered your job conditions because of your failure to submit to sexual demands.

To demonstrate that you have been subjected to a hostile work environment, you must show that: 1. you belong to a protected group (women are considered a protected group); 2. you were subjected to unwelcome sexual harassment; 3. the harassment was based on sex; 4. the harassment was so severe or pervasive that it altered the terms and conditions of employment; 5. there are grounds to hold you employer directly or indirectly liable.

How do I show that my employer knew what was going on?

Your employer is liable if it knew or should have known of the conditions you complained of and failed to take action against it. If you complain directly to your employer about the situation, then the employer is charged with "actual knowledge," and if the condition is open and observable, the employer is charged with "constructive knowledge."

Can I file a claim against my boss/supervisor or other co-workers under the FCRA?

While the FCRA does not permit suits against individuals, you can still sue individuals who have harmed you under other statutes or judge-made law. For example, depending on the nature of the harassment which you have experienced, you may have claims against individual supervisors or co-workers for battery (improper touching), invasion of privacy, intentional infliction of emotional distress, or false imprisonment.

Can I get damages for emotional distress?

Yes. The FCRA provides for damages due to mental anguish. See What do I get if I win? for details on what remedies you are entitled to.

I complained to my employer and they reprimanded the harasser. Can I still file a claim?

Yes, but your employer can defend itself by asserting that it exercised reasonable care to prevent and correct promptly the sexually harassing behavior and that you did not take advantage of opportunities to correct or prevent the harm. For example, there must be a complaint procedure which allows sexual harassment victims to make their complaint by bypassing the offending supervisor if necessary.

I reported to my employer, but they didn’t do anything – can I still file a claim?

Yes, and in this case the employer would have a more difficult time asserting such a defense.

Is one incident of sexual harassment sufficient basis for a claim?

Generally, courts do not consider isolated incidents of harassment actionable unless they are severe.

How do I show that this conduct affected my ability to work?

There are four factors you need to show for the court to make this determination: 1. the frequency of the conduct; 2. the severity of the conduct; 3. whether the conduct is physically harassing or humiliating, or merely offensive; 4. whether the conduct unreasonably interferes with your job performance.

What is the difference between sex discrimination and sexual harassment?

Sexual harassment is a type of sex discrimination, because the harassment is based on your sex. Furthermore, any harassment or conduct which would not occur but for your sex may constitute harassment, even if it is not clearly sexual in nature.

What could my employer do to deny my allegations, and how do I respond to its denials?

Once you establish your case, your employer must give a legitimate, non-discriminatory reason for its actions. You must then show that the reasons your employer has provided are false.